Decell v. McRee

• Decision Date: 15 February 1904
• Court: Mississippi Supreme Court
• Parties: JAMES E. DECELL ET UX. v. WILLIAM J. MCREE ET AL

35 So. 940

83 Miss. 423

JAMES E. DECELL ET UX. v. WILLIAM J. MCREE ET AL

Supreme Court of Mississippi

February 15, 1904

FROM the chancery court of Lincoln county. HON. ROBERT B. MAYES chancellor.

Decell and wife, appellants, were complainants, and McRee and others, appellees, were defendants in the court below.

Decell and wife, appellants, filed their bill in equity asking for permission to remove certain buildings, known as the "Grange Hall Boarding House," from certain lands described in their bill. The bill alleges that in 1891 T Buie and his wife conveyed the lands described in the bill to J. C. Chiles, W. H. Williams, and complainant J. E. Decell as trustees of Grange Hall School, and their successors in office; that afterwards J. E. Decell and others entered into a partnership or stock company, known as the Grange Hall Boarding House Stock Company, for the purpose of erecting a boarding house on the said lands at Grange Hall, in Lincoln county, for maintaining and establishing a high school; that the capital stock of the company was $ 1,500, divided into 150 shares of $ 10 each, and that certificates of stock were issued to the respective stockholders, according to their interest in the company, and that with the money paid for said stock there was, with the knowledge and consent of the trustees of Grange Hall School, erected a boarding house of the value of $ 1,500, a large shed to the value of $ 10, a garden to the value of $ 20, which buildings and improvements were agreed to be the property of the stock company; that in 1898 complainants, James E. Decell and wife, purchased from each of the stockholders his share of the boarding house stock company, and that each of them transferred to them his certificate of stock, and that they are now the sole and exclusive owners of the said boarding house and improvements and in possession of same; that in the May term, 1903, of the circuit court of Lincoln county a judgment was rendered in favor of defendant trustees against complainants for the possession of the lands on which the boarding house and improvements were erected; that complainants are without complete, perfect, and adequate remedy at law, and ask permission to remove the buildings and other improvements.

The defendants demurred to bill, and assigned the following causes of demurrer: (1) There is no equity on the face of the bill. (2) The judgment in the ejectment suit is res adjudicata. (3) That the parol agreement whereby the house was to be constructed on school lands, and be the property of the stock company, was void because it appears on the face of the bill that a majority of the trustees of the school were also stockholders in the company. (4) The agreement is void because it is an attempt to divert trust property from the purposes to which it was originally donated and place it in the hands of private parties. This demurrer was sustained and the suit dismissed, and complainants appealed to the supreme court.

Decree reversed, demurrer overruled and cause remanded.

A. C McNair, for appellants.

The appellants lay no claim to the land sued for bye the school trustees, the appellees. They claim the ownership of the dwelling, etc., erected on the land, by agreement between the trustees and the members of the "Grange Hall Boarding House Stock Company." The bill is filed for the purpose of removing the house from the land, and is predicated of the cases of Otley v. Haviland, 36 Miss. 19, and Watkins v. Owens, 47 Miss. 593. By the express agreement between the trustees and the members of the Boarding House Company the buildings were erected on the land of the trustees for the purpose of aiding in the establishment of the school and were a necessary auxiliary to the school. The bill states that the buildings were placed on the land by the express agreement that they should be and remain the property of the members of the company, and that they should not be the property of the school trustees. That the court of equity is the proper tribunal to grant the relief sought by the bill, the above cases are decisive.

The bill alleges that the appellee trustees at the May, 1903 term of the circuit court, recovered in ejectment against them a judgment for the land on which the buildings are situated, and that they are attempting to enforce the judgment by a writ of possession, and thus deprive the complainants of the use and ocupancy of the buildings. It appears that the appellees did not claim mesne profits or damages in the ejectment suit, and that the complainants did not claim for improvements, and that the buildings were not claimed in the ejectment proceeding, and that the right of the buildings was not involved and adjudicated in the judgment rendered in that suit.

The complainants do not now and have never claimed the land. On the contrary, they have recognized the title of the trustees to the land. They have not sought and do not seek to deprive the legal owners of the possession of the land. All they have claimed is the buildings erected on the land under the agreement with the holders of the legal title, and the bill is filed to obtain leave of the chancery court to remove their property from the land of the appellees.

A judgment is conclusive between the parties and privies as to all those matters which were involved and proved, or which might have been proved, under the pleading. Agnew v. McElroy, 10 Smed. & M., 552; Thomas v. Phillips, 4 Smed. & M., 358; Gaines v. Kennedy, 53 Miss. 103; Lorance v. Platt, 67 Miss. 183; Schumpert v. Dillard, 55 Miss. 348. A matter, however, is not res adjudicata merely because it might have been included in an adjudication; if, in fact, it was not presented by the pleadings or necessarily involved. Davis v. Davis, 65 Miss. 498; Hubbard v. Flynt, 58 Miss. 266.

The bill shows that the Grange School enterprise was a private one, and was not a public one. It shows further that the hoarding house was erected for the purpose of aiding and establishing and maintaining the school. The idea, evidently, of the promoters and interested parties being that for the purpose of the school, a boarding house was necessary or convenient. A very just and wise conclusion. And by the agreement of all parties, it was erected for that purpose.

Trustees have no right to divert and destroy the trust property, but they have the right to use it in any legitimate way for the advantage of the beneficiaries. Under the agreement the trustees, as such, had no interest in the buildings. They simply allowed the use of the trust property for the benefit of the trust. This they had a right to do. Money v. Ricketts, 62 Miss. 209; Gentry v. Gambling, 79 Miss. 437; Vicksburg, etc., R. Co. v. Ragsdale, 54 Miss. 200; Weathersby v. Sleeper, 42 Miss. 732; Stillman v. Hamer, 7 How. (Miss.), 421; Duff v. Snider, 54 Miss. 245.

Jones &amp McCullough, for appelle...